' This appeal is directed against the appellate judgment and decree of the learned District Judge, Gujranwala, dated the 26th June, 1978, which, after reversing the judgment and decree of the learned Civil Judge, Hafizabad, dated the 22nd December, 1976, whereby the appellant's suit for possession by pre-emption of 42 kanals 2 marlas of the land in dispute, which formed part of 43 kanals 15 marlas of land being (1/4)th share of 175 kanals one marla of jointly owned land entered in Khata No,6, situate in the area of village Kharlanwala, tahsil Hafizabad, district Gujranwala, had been decreed on payment Of Rs,28,750 recorded dismissal of the suit. By means of the sale deed, Exh D 4, which was executed and registered on the 15th June,1972, Sohna and Muhammad Ali, sons of Lal, sold the land in question to the respondents. Hayat, appellant, who is a collateral heir of the vendors, brought suit to pre-empt the sale. He claimed superiority of pre-emptive right as against the respondents who are not related to the vendors. However, the respondents resisted the suit on the ground that they were tenants of the land at the time of its sale. This fact the appellant gave a lie to.
2. The learned trial Court accepted the contention of the respondents that they were tenants of the land entered in seven out of thirty-seven fields of Khata No,6, namely, khasras Nos.35,54,56, 64,506,508 and 59, at the time of sale. Nevertheless, it thought that since pars 25(3) of the Land Reforms Regulation, 1972, conferred first right of pre-emption upon the tenants as from Kharif, 1972, the respondents had no such right when they purchased the land and consequently could not put up successful defence. It decreed the suit.
3. In appeal the learned District Judge adopted a different approach. He argued that before institution of the suit by the appellant (on the 18th Apri1,1973) the respondents had been endowed with the first right of pre-emption in Kharif 1972, and, therefore, the appellant ceased to enjoy superiority of right of pre-emption in respect of the land comprising in the tenancy of the respondents. He amplified his view by reiterating the oft quoted principle of the law of pre-emption that the pre-emptor must have superior right of pre-emption at the time of sale, at the time of institution of suit and at the time of decree. Since, according to him, the appellant was no longer in possession of preferential pre-emptive right as against the respondents when he filed the suit he could not succeed. He non-suited him. He took it for granted, and brushed aside the submissions to the contrary made on behalf of the appellant, that the vendees were tenants of whole of the suit land.
4. A perusal of the entries of khasra girdawari register, Exh. D.1., confirms, and this fact is no longer subject-matter of dispute between the parties, that the respondents came to be in possession of portions of Khasras Nos 35,54,56,64,506,508 and 59, as detailed below, as tenants in Rabi 1972,- Sr. NoKhasra NoArea of portion of field in possession of the respondents Kanals Marlas 1 35 2 13 2 54 5 15 3 56 4 9 4 64 2 6 5 506 4 5 6 508 4 9 7 59 5 0 Total 28 17
5. Rabi crop is usually sown in October and is harvested in April. It means that the respondents had been occupying the above-mentioned 28 kanals 17 marlas of land as tenants before they purchased the land in dispute in mid summer on the 15th June,1972, when it was Kharif crop season. Consequently at the time of sale they could very well be said to have been in possession of the superior most right of pre-emption which had been conferred upon them by para 25(3) of the Land Reforms Regularion, 1972. The appellant lost his preferential pre-emption right as against the respondents in respect of the land comprising in their tenancy. However, the respondents had no right with regard to the rest of the land in dispute of which they were not tenants and the appellant's right thereto is undeniable.
7. The rule laid down by the Supreme Court of Pakistan in Fateh Khan v. Abdul Rahman [1983 SCMR 293], helps to determine the area of land which the respondents are entitled to retain.' They purchased 42 Kanals 2 marlas out of 175 kanals 1 marla of jointly owned land of Khata No 6, that is to say, they purchased 842/3501th share of the joint Khata. They are found to be in actual possession of only 28 kanals 17 marlas of land a tenants. As they purchased 842/3501th share they will be allowed to keep 842/3501th share of 28 kanals 17 marlas which comes to 6 karrals 19 marlas of land. The rest of 35 kanals 3 marlas of land in dispute will go to the appellant. The sale consideration of Rs,28,750.00 is not in dispute. The appellant has to pay Rs,24,004.00, the price equivalent of 35 kanals 3 marlas.
7. The contention of the learned counsel for the appellant that with the decision of the Shariat Appellate Bench of the Supreme Court of Pakistan delivered in Government of N.-W.F.P. v. Said Kamal Shah [PLD 1986 Supreme Court '360], the respondents' right pre-emption has been totally extinguished rendering them disentitled to hold any share of land is, in face of the decision of this Court reported as Abdul Ghaffar Khan v. Saghir Ahmad Aslam [PLD 1987 Lah.358], without force because the present litigation having started before the 31st July, 1986, would be regulated and decided according to the provisions of para 25(3) of the Land Reforms Regulation, L972.
8. In view of the above the appeal is accepted, the judgment and decree of the learned appellate Court below is set aside and a decree for possession of 35 kanals 3 marlas of land out of 42 kanals marlas of the land in dispute is passed in favour of the appellant Ind against the respondents and it is directed that the appellant ;hall pay into the trial Court Rs,24,004.00 (less the amount already deposited) on or before the 14th January, 1988, and on such payment )eing made the respondents shall deliver possession of 35 kanals 3 narlas out of 42 kanals 2 marlas of the land in dispute to the appellant vhose title thereto shall be deemed to have accrued from the date of such payment but if the aforesaid purchase money of Rs,24,004.00 is tot so paid the appellant's suit shall be dismissed with costs. The tppellant's suit with regard to 6 kanals 19 marlas of land (out of 42 Kanals 2 marlas of the land in dispute), of which the respondents lave been adjudged to be entitled to keep possession, is dismissed. f the appellant has already deposited Rs,28750.00 in obedience to he decree of the learned trial Court he will be entitled to get refund of Rs,4746.00 (Rs,28750.00 minus Rs,24,004.00). In the :ircumstances of the case the parties are left to bear their own costs hroughout.